COURT FILE NO.: FS-14-81978-01

DATE: 2021 10 06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Y.M.S. , Applicant/Responding Party

AND:

R.O.S., Respondent/Moving Party

BEFORE: Doi J.

COUNSEL: Jordan D. McKie, for the Moving Party Mathew Fordjour, for the Responding Party

Samir C. Patel, for the children K.R.S. and T.H.S.

HEARD: December 14, 2020, January 22, 2021, February 4, 2021, March 8 and 9, 2021,

and April 6, 2021

REASONS FOR JUDGMENT

Overview

[1] On this motion to change, the Respondent father seeks to vary the parenting terms of the consent Final Order of André J. dated December 6, 2016 (the “Final Order”) to have primary residence and final decision-making for T.H.S., the younger child of the marriage, and parenting time for the Applicant mother. In her response, the mother opposes the relief sought by the father and seeks to have sole decision-making for T.H.S. and K.R.S., the older child of the marriage, along with other corollary relief.

[2] Initially, the father sought the same relief for T.H.S. and K.R.S.. However, shortly before the start of trial, the Respondent withdrew the motion to change for K.R.S. after accepting that the motion was not consistent with her best interests. With tremendous regret, the father conceded that no order of the court could repair his parenting relationship with K.R.S., as the teen did not wish to have a relationship with him. As set out below, I accept that it would be in K.R.S.’ best interests to continue residing with the mother who should exercise sole decision-making for the teen.

[3] T.H.S. has a complicated parenting relationship with the father. At times, T.H.S. and the father have shared meaningful and quality parenting time together. However, these occasions were overtaken by the father’s conduct and behaviour that led T.H.S. to develop a keen wariness and mistrust of the father, as explained below. Although T.H.S. is open to the idea of sharing some parenting time with the father, particularly around special events or holidays, T.H.S. has voiced a strong preference to have his residence and decision-making with the mother, to not re-attend reunification therapy, and to have sole discretion over when and how to share parenting time with the father. T.H.S. would like the father to observe boundaries in their relationship and work on earning the trust that will be needed for them to have a positive and lasting relationship.

[4] In many respects, this is a particularly unfortunate and heartbreaking case. The family conflict has been lengthy and bitter as the parties traded allegations of mistreatment and parental alienation against each other. The family conflict has clearly impacted both children who were caught in the cross-fire and forced to cope with the often harsh and volatile family dynamics. Although the parties previously settled their parenting issues by consenting to the Final Order, problems emerged soon thereafter which led to further conflict and protracted litigation.

[5] Although T.H.S. and the father share a troubled relationship, I believe that it may be restored over time with trust and self-awareness. Achieving this will first require a measure of stability by having the father observe some boundaries. T.H.S.’s views and preferences will be an important part of this process, which cannot be rushed. Seeing the father respect his boundaries will help T.H.S. gain the necessary confidence to trust the father and repair their relationship in a lasting way. In turn, the father will need a dose of self-awareness to appreciate the impact of his actions on their relationship.

[6] With time and patience, I believe that T.H.S. would positively engage with the father to build the kind of sincere and genuine relationship that both are seeking. Given T.H.S.’ maturity and views, I see no realistic basis to expect that his relationship with the father can be successfully repaired by simply compelling him to attend parenting time or reunification therapy over his wishes. In my view, the best and perhaps only realistic way to properly restore T.H.S.’ parenting relationship with the father is to take a more child-focussed approach by considering his views.

[7] Ultimately, having regard to all of the evidence, I am satisfied that it would be in T.H.S.’s best interests to have his residence and decision-making with the mother, and parenting time with the father at her sole discretion after considering T.H.S.’ wishes. In my view, T.H.S.’s views regarding his parenting visits with the father must be considered, which the parties had recognized by consenting to a term in the Final Order that allows for a review of the parenting schedule by taking into account the children’s wishes and preferences. T.H.S. has impressed me as a thoughtful and mature teen who has developed a balanced perspective of the adult conflict, its impact on family dynamics, and his own complicated relationship with the father. Given the history of this dispute, I am satisfied that granting the mother sole discretion over T.H.S.’s parenting time after considering his views and preferences would give the child the best possible opportunity over time to restore his parenting relationship with the father in a meaningful way.

Background

[8] The parties married on August 23, 2002, separated on May 19, 2014, and divorced on March 3, 2017. From 2009, the parties lived in separate residences but remained as a couple until formally separating in May 2014.

[9] The parties have two (2) children of the marriage, namely K.R.S. (born June 3, 2003) and

T.H.S. (born January 1, 2006).

[10] On consent, the parties entered into the Final Order dated December 6, 2016. Among other things, the parties agreed to joint custody of the children. The parenting arrangement calls for the children to reside with the mother and spend parenting time with the father. Parenting time with the father was ordered for every other Thursday from after school to Sunday at 6:00 pm and, upon at least 48 hours notice to the mother, on the Wednesday of the week without weekend parenting from after school until 8:00 pm. The parenting terms found in the Final Order were based on the parenting terms in the parties’ separation agreement dated August 26, 2016.

[11] The Final Order specifically provided that either party could seek a review of the parenting schedule after January 15, 2017, following mediation. The Final Order also contemplated that a review would take into account the children’s wishes and preferences on parenting time.

[12] The father claims that the mother denied his court-ordered parenting time with the children from January 2017. Unfortunately, the missed parenting time was extensive and remains ongoing. The mother does not dispute the missed parenting time, but claims that the children are unwilling to see the father and have refused their parenting time with him despite her best efforts to persuade them to attend. The father claims that the mother has deliberately withheld his parenting time and blames her for alienating the children from him.

[13] From March to May 2017, the father asked to mediate the parenting time issues but the mother initially declined mediation. Without attending mediation, the father brought a motion in July 2017 to change the parenting terms of the Final Order by seeking to have decision-making and primary residency for the children, and parenting time to the mother. He also sought to end his obligation to pay child support.

[14] On August 4, 2017, the father brought this motion to change to vary parenting time on the grounds that the mother was withholding the children and jeopardizing his parenting relationships. Subsequently, on November 7, 2019, the father filed an amended motion to change to seek primary residence, sole decision-making, a suspension of the children’s parenting time and contact with the mother to facilitate their reunification with the father, an order for the children to attend reunification therapy, and other corollary relief. The mother opposed the father’s motion to change and filed a response seeking to change the parenting arrangements based on the children’s apparent preferences for less parenting time with the father. On November 20, 2019, the mother filed an amended response to have sole decision-making for both children.

[15] On March 9, 2018, the father brought a contempt motion against the mother on the basis that she was deliberately frustrating his parenting time under the Final Order. On March 26, 2018, Sproat J. found the motion to be premature and directed the parties to attend mediation: Y.M.S. v. R.O.S., 2018 ONSC 2100 at paras 8-9. Shortly thereafter, the father returned a second contempt motion due to his inability to have parenting time with K.R.S. and the mother’s refusal to permit

T.H.S. to play hockey for a team near the father’s residence. By Endorsement dated April 6, 2018, Coroza J., as he then was, dismissed the motion for prematurity as the parties had yet to attend mediation. Both of my judicial colleagues implored the parties to make meaningful efforts to pursue mediation and encourage the children to attend parenting visits.

[16] On or about June 1, 2018, the parties briefly attended an unsuccessful mediation session. Each party blamed the other for failing to engage in meaningful discussions to resolve the issues in dispute. The father promptly served another contempt motion.

[17] On June 21, 2018, Ricchetti J. heard the father’s third contempt motion against the mother for denying the children’s parenting time with him. By Endorsement dated June 26, 2018, Ricchetti J. ordered a request for the involvement of the Office of the Children’s Lawyer (“OCL”) to canvass the children’s preferences on parenting, and adjourned the contempt motion until after the OCL had responded to the order. Although Ricchetti J. directed the parties to do their utmost to persuade the children to comply with the parenting schedule in the Final Order, the children declined to follow the court-ordered parenting schedule. Ricchetti J. also observed that it was unclear whether either party had approached mediation in good faith.

[18] On July 31, 2018, the OCL assigned counsel to serve as the children’s legal representative in this case under ss. 89(3.1) of the Courts of Justice Act, RSO 1990, c. C.43. On March 13, 2019, OCL counsel, Mr. Patel, hosted a disclosure meeting with the parties and their counsel to share the children’s position on the parenting issues. The position of the children clearly reflected their strained relationship with the father.

[19] Shortly after the OCL disclosure meeting, the father advised of his intention to return his contempt motion against the mother. On June 7, 2019, the OCL enlisted an experienced clinician, Gillian MacPherson, to give evidence on behalf of the children in this proceeding.

[20] The parties returned to court on several occasions in 2019. On January 20, 2020, the parties came before Ricchetti J. and entered into a temporary settlement agreement to create an interim without prejudice parenting schedule for T.H.S. and the father to share several hours of weekly parenting time, and for K.R.S. and the father to have optional parenting time. The parties agreed to reunification therapy, and adjourned the contempt motion which had subsumed the father’s position on the motion to change. The parties retained Jacqueline Iafrate, an experienced family therapist, to conduct the reunification therapy.

[21] By Endorsement dated July 2, 2020, Bielby J. decided a further motion by the father for an interim parenting order. In thoughtful reasons, Bielby J. determined that both children, then 17 and 14 years of age, respectively, were mature enough to articulate their views and preferences on

the parenting issues, which had remained largely consistent throughout the OCL’s involvement. Bielby J. expressed that the father should consider the children’s reasons and frustrations when attempting to rebuild their relationship with him, instead of assuming without any self-reflection that fault must lie with the mother. Bielby J. granted an interim order for T.H.S. to share 2 ½ hours of parenting time with the father on alternate Sundays, and other times as agreed upon, which apparently reflected what T.H.S. was prepared to accept at that time. Bielby J. characterized this interim parenting schedule as the start to re-establishing the father’s relationship with T.H.S., but on T.H.S.’ terms. In his Endorsement dated July 2, 2021, Bielby J. observed (at para 51):

If the [father] abides by [T.H.S.’] wishes, [T.H.S.] may look at the time he spends with his father not as a matter of legal obligation but more of a recognition of an acceptance of the current situation, which over time may lead to a stronger father/son relationship and more parenting time.

As further explained below, I share Bielby J.’s observation about how T.H.S. and the father may best restore their relationship over time.

[22] Following a case conference on November 13, 2020, Ricchetti J. scheduled the motion to change and the contempt motion for trial. At the start of trial on December 14, 2020, the court began to hear both matters in tandem. On January 22, 2021, the parties advised that the contempt motion had settled. Thereafter, the trial proceeded only in respect of the motion to change.

[23] Regrettably, the older child, K.R.S., who is now 18 years old, clearly expressed a strong preference to have no relationship with the father. Given her views, the father withdrew his motion to change in respect of K.R.S. at the start of trial. In doing so, the father conceded, with much regret, that his relationship with K.R.S. was at a point where he did not realistically believe that an order of the court would effectively help to restore their relationship. The father expressed his love for K.R.S. and remains hopeful that their relationship will improve over time. However, he now accepts that K.R.S. will have to decide of her own accord to repair their relationship if they are to have one at all.

[24] In light of the father’s position, the focus of the trial shifted to largely focus on the parenting issues in respect of T.H.S., the parties’ 15 year old son.

The Evidence

[25] In their evidence at trial, which was heard by video, Ms. MacPherson and the parties gave updated evidence in chief before being cross-examined on their affidavits. In addition, Ms. Iafrate was examined on her reunification therapy summary dated October 21, 2020.[^1]

[26] The following affidavits were considered on this motion to change:[^2]

a. the father’s affidavits, sworn:

i. February 28, 2018;

ii. March 11, 2018;

iii. March 27, 2018;

iv. June 1, 2018;

v. December 4, 2019;

vi. January 13, 2020;

vii. June 5, 2020;

viii. June 16, 2020;

ix. December 1, 2020; and

x. December 10, 2020.[^3]

b. the affidavit of Keisha Ann Dawkins sworn March 11, 2020;

c. the mother’s affidavits sworn: i. March 13, 2018;

ii. April 3, 2018;

iii. June 5, 2018;

iv. January 6, 2020;

v. June 12, 2020; and

vi. December 1, 2020.

d. the affidavits of Ms. MacPherson sworn:

i. August 28, 2019;

ii. January 7, 2020;

iii. June 12, 2020; and

iv. October 8, 2020.

Voir Dire

[27] At the outset of trial, counsel for the parties advised that the admissibility of out-of-court statements made by the children would be challenged. The OCL moved to adduce statements made by the children to Ms. MacPherson, its clinical worker. The father sought to adduce the

children’s statement to Ms. Iafrate during reunification therapy, and also sought to introduce a statement attributed to T.H.S. during a chambers interview with Ricchetti J. on January 20, 2020.

[28] To arrive at a fair and just determination of the parenting orders being sought, the trial proceeded with a strict application of the hearsay rule and its principled and categorical exceptions to ensure accurate fact-finding in assessing the best interests of the child.

[29] By agreement of all parties, the hearing proceeded as a blended voir dire and trial with arguments on the admissibility of the out-of-court statements heard in closing submissions. On March 8, 2021, the father adopted a new position and conceded the motion by the OCL to admit Ms. MacPherson’s evidence of her discussions with T.H.S. for the truth of their contents. The balance of the children’s hearsay statements continued to be challenged.

[30] For the reasons that follow, I find that the out-of-court statements given by both children to Ms. MacPherson and Ms. Iafrate should be admitted into evidence. I also find that the statement attributed to T.H.S. from his chambers interview was essentially confirmed by the evidence from Ms. MacPherson and should be admitted into evidence.

a. The Principled Approach

[31] Absent an exception, hearsay is inadmissible. Hearsay is an out-of-court statement offered for the truth of its contents. Concerns over hearsay evidence arise from the inability to test its reliability. In general, hearsay is not taken under oath, the declarant’s demeanor when making the statement is not observed, and hearsay is not tested in cross-examination: R. v. Bradshaw, 2017 SCC 35 at para 20. Hearsay may be inaccurately recorded, and the perception, memory, narration or sincerity of the declarant is not easily investigated: R. v. Khelawon, 2006 SCC 57 at para 2.

[32] Nevertheless, some hearsay presents minimal danger such that its exclusion would impede accurate fact finding: Bradshaw at para 22; Khelawon at para 2. The presumptive inadmissibility of hearsay may be overcome in cases where its proposed admission meets the requirements of necessity and threshold reliability and satisfies the principled approach to hearsay: Bradshaw at paras 22-23; Khelawon at paras 42 and 47; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at paras 29-30; Ward v. Swan, 2009 CanLII 22551 (ONSC) at paras 2-3; Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 at paras 9-17.

[33] In family cases involving child hearsay, the necessity requirement takes into account what is reasonably necessary and considers the harm to a child of having to testify in court: Y. v. F.T., 2017 ONSC 4395 at para 134; C.A.S. v. C.L., 2018 ONSC 1241 at paras 27-28; Ward at paras 12- 13; C.(S.E.) v. P.(G.), 2003 CanLII 2028 (ONSC) at para 32; Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para 58.

[34] The requirement for threshold reliability asks whether the child’s hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para 24; Khelawon at para 49; G.S. at para 12. Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child’s personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. at para 134; Khelawon at para 51; Khan at para 30. The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] OJ No 1097(CJ) at paras 15-16. The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para 17.

[35] A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given the conditions when it was made and any corroborating evidence: Bradshaw at para 30; Khelawon at paras 4, 62 and 94-100; G.S. at para 16.

[36] In this case, the parties all agree that the necessity requirement has been met. All concede that the children have been impacted by the family conflict, and that it would be inappropriate and harmful for them to be required to testify. To avoid having the children further impacted by the parenting dispute, I accept that it would have been quite inappropriate for the children to give oral evidence. Accordingly, I find that it was reasonably necessary for their hearsay statements to be admitted into evidence. The analysis then turns to whether their statements are reliable.

i. Ms. MacPherson’s Evidence

[37] I am satisfied that the out-of-court statements made by both children to Ms. MacPherson are sufficiently trustworthy to satisfy the requirement for threshold reliability. Although the father formally conceded only the admissibility of T.H.S.’ hearsay statements, I accept that K.R.S.’ out-

of-court statements to Ms. MacPherson also meet the requirement for threshold reliability given the sufficiently trustworthy nature of her statements. Ms. MacPherson is a highly qualified and knowledgeable OCL clinical investigator who was assigned to interview the children and to give evidence of their views in this proceeding after the OCL began representing the children pursuant to ss. 89(3.1) of the Courts of Justice Act.

[38] Ms. MacPherson had undergraduate and graduate degrees in sociology and social work, and is an experienced child protection worker. Since 2012, she has worked with the OCL by conducting investigations and preparing reports on parenting issues. She has been trained on how to interview children to accurately determine, record and convey their views, and has years of experience working with children on a range of parenting and child protection matters. Having regard to her credentials, training and work experience, I am satisfied that Ms. MacPherson is a capable clinician with a strong appreciation of how to prepare and give evidence to accurately convey a child’s preferences in family matters.

[39] I am quite satisfied that Ms. MacPherson recognized her duty to provide accurate evidence about the children’s views and preferences to fulfill the OCL’s obligation to act for the children in this proceeding. I accept that she worked thoughtfully and carefully with K.R.S. and T.H.S. to discharge this important responsibility on their behalf in an even-handed and professional manner. I also accept that Ms. MacPherson has no vested interest in the outcome of this case.

[40] Given her description of the approach that she followed in meeting with the children to canvass their views, I am satisfied that Ms. Macpherson employed good methodology to accurately acquire, record and convey the information that the children shared regarding their views and preferences on the parenting issues in dispute. I accept that Ms. MacPherson explained her role to both children and interviewed them in a professional, patient and respectful manner that created a positive environment for the children to candidly share their parenting views and preferences in a fulsome and meaningful way. I find that Ms. MacPherson took appropriate precautions to ensure the privacy of her meetings with the children, including those held by video conference, to allow the children to speak freely and candidly without influence. Having regard to the details in her affidavits and testimony, I find overall that Ms. MacPherson’s evidence accurately and objectively conveyed the information given by the children, which she recorded in her contemporaneous notes from their meetings. Under cross-examination, Ms. MacPherson gave thoughtful and considered

answers in cogent fashion which conveyed the children’s views with details and particulars that brought good transparency and objectivity to her evidence.

[41] Based on the foregoing, I am satisfied that Ms. MacPherson’s evidence of the children’s out-of-court statements meets the test for threshold reliability. In my view, her evidence of the children’s parenting preferences is reliable and sufficient to be admitted into evidence: Bradshaw at para 24. I add that courts usually give strong weight to evidence from OCL clinicians who are highly trained and experienced in determining the views of children: Maharaj at para 67.

ii. Ms. Iafrate’s Evidence

[42] I find that the statements made by K.R.S. and T.H.S. to Ms. Iafrate satisfy the requirement for threshold reliability. Ms. Iafrate is a registered social worker who worked with the family to conduct reunification therapy. She holds a graduate degree in social work, and has an established therapy practice in which she regularly works with children and parents to help address difficult parenting relationships and other complicated family situations. The parties, through their counsel, identified Ms. Iafrate as an experienced and capable therapist which led them to jointly retain her to conduct reunification therapy in this matter.

[43] Under the terms of her retainer, Ms. Iafrate did not report to either parent and maintained an impartial and autonomous relationship with each family member throughout her engagement. She developed her reunification therapy approach after conducting separate intake sessions with each parent and child. The goal of the reunification therapy was to strengthen the parent-child relationships while helping the children address emotional issues related to the family conflict.

[44] Under the terms of her retainer, Ms. Iafrate agreed to prepare a therapy summary on request by either party, following a certain number of sessions, to summarize the therapeutic services that she provided to the family. The summary is not a report, has no recommendations, and was given to simply explain what took place. I accept Ms. Iafrate’s evidence that a therapy summary is often helpful to a family by explaining what took place in order to better understand and improve family relationships and dynamics.

[45] From her evidence, I am satisfied that Ms. Iafrate took careful clinical notes during her sessions with family members, which she later used in preparing her therapy summary and in

giving her evidence to the court. On consent of the parties, the summary formed the basis of her evidence on which she was cross-examined. In her evidence, Ms. Iafrate confirmed that the events stated in the therapy summary were consistent with her clinical notes, and accurately summarized the most critical points from the sessions. Ms. Iafrate also explained that portions of her sessions with the children were confidential, which I shall further discuss below in addressing the mother’s objection to Ms. Iafrate’s evidence on the basis of therapy privilege.

[46] I am satisfied that Ms. Iafrate prepared accurate and contemporaneous notes of her sessions with the family in keeping with her professional practices and obligations. I find that she explained her role to the children and conducted her sessions with them in a warm and professional manner which reassured the children and enabled them to express their views and preferences in a candid and forthright manner. During cross-examination, Ms. Iafrate answered questions in a fulsome and thoughtful way that explained the children’s comments and her clinical observations with good clarity. In my view, her evidence showed an informed understanding of the children’s perspectives and the family dynamics. I accept that Ms. Iafrate conducted the reunification therapy in a neutral and professional fashion, and find that she has no vested interest in the outcome of this case.

[47] Accordingly, I find that Ms. Iafrate’s evidence meets the requirement for threshold reliability. I am satisfied that her evidence about the children is sufficiently reliable to be admitted into evidence under the principled approach: Bradshaw at para 24.

iii. The Father’s Evidence

[48] The mother and the children objected to the father’s evidence of T.H.S. statement to Ricchetti J. during an in-chambers interview on January 20, 2020.[^4] The hearsay attributed to the child convey his preference to maintain his parenting relationship with the father. As set out below, I am satisfied that the statement should be admitted into evidence for the truth of its contents.

[49] The hearsay statement attributed to T.H.S. is relevant to the parenting issues in dispute and is offered by the father who clearly has a vested interest in the outcome of this case, which raises some immediate concerns about the reliability of this statement. The hearsay statement was not recorded in an endorsement by the court, and the father did not adduce a transcript of the hearing when the motion judge referred to T.H.S.’s statement. The father gave no indication that he had recorded the hearsay statement in any notes made contemporaneously or otherwise, and he gave

no other details about the hearsay apart from baldly asserting it. These circumstances immediately raise concerns with the inherent reliability of the hearsay statement, which is compounded by its third-hand hearsay nature for which cross-examination is unavailable: Y.at para 141; Catholic Children’s Aid Society of Metropolitan Toronto v. B.(S.), [1998] OJ No 6445 (CJ) at para 26.

[50] Nevertheless, when Ms. MacPherson met with T.H.S. on October 2, 2020, the teen confirmed that he had told his lawyer and “the judge” that he would be willing to attend parenting visits because he ultimately wanted to please his father.[^5] Ms. MacPherson went on to record this hearsay statement by T.H.S. in her notes and included the statement in her evidence which was admitted under the principled exception, as set out earlier. From the record, there is no dispute that Ricchetti J. interviewed T.H.S. in chambers on January 20, 2020 to canvass the child’s views and preferences.[^6] In turn, I find that the father’s evidence of T.H.S.’ hearsay may be reconciled with Ms. MacPherson’s evidence regarding T.H.S.’ statement about his parenting views to the motion judge during his chambers interview. In these particular circumstances, I am satisfied that the father’s hearsay statement should be admitted into evidence.

b. The State of Mind Exception

[51] Although I have found that the children’s statements to Ms. McPherson and Ms. Iafrate meet the test for threshold reliability, which the father has conceded in respect of T.H.S.’ hearsay statements, I shall briefly address the state of mind exception which the OCL raised in submissions.

[52] The “state of mind” exception is a categorical hearsay exception for admitting statements about a person’s contemporaneous physical, mental or emotional state. The exception permits the admission into evidence of intent or other mental states for the truth of their contents, and supports a reasonable inference that the declarant followed through on the intended course of action: R. Starr, 2000 SCC 40 at para 169; R. v. Cote, 2018 ONCA 870 at para 22. However, the exception does not permit statements describing the cause or reason of the state, whether it be past or present events, or statements made under circumstances of suspicion: Family and Children’s Services of Guelph and Wellington County v. A.M.P. and K.D.S., 2020 ONSC 7418 at para 97; Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8 at para 71; Clermont v Addie, 2017 ONSC 1301 at para 104; Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 452 at para 5; Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 at para 19. State of mind

evidence is not a “back door” for admitting evidence of past acts by purportedly addressing a child’s alleged current feelings: Ward v. Swan, 2009 CanLII 22551 (ONSC) at paras 7-8; DeGiorgio v. DeGiorgio, 2020 ONSC 1674 at paras 32-35.

[53] The OCL, supported by the Applicant, took the position that the children’s out-of-court statements to Ms. MacPherson about their views and preferences, and their own feelings on a range of subjects, are all statements that can and should be admitted under the state of mind exception to show their mental or emotional state when they made the statements. They also asserted that the children made their statements to Ms. MacPherson in circumstances that raise no suspicions.

[54] The OCL prepared a helpful chart at Schedule A to its notice of motion dated January 18, 2021 setting out the various statements the children made to Ms. MacPherson that it sought to introduce under the state of mind exception. These statements may be grouped into the following broad categories:

a. The children’s feelings about their relationships with the father;

b. The children’s feelings about their relationships with the mother;

c. The children’s feelings about their relationships with each other;

d. The children’s feelings about their relationships with other family members;

e. The children’s feelings about interacting with the father;

f. The children’s feelings about the father’s temperament and conduct;

g. The children’s feelings about their wellness and health;

h. The children’s feelings about counselling;

i. The children’s feelings about decision-making and parenting time;

j. The children’s feelings related to the outcome of the court process; and

k. The children’s feelings about the future.

[55] The OCL conceded that where it sought to lead the children’s out-of-court statements to Ms. MacPherson to explain the reason for their statements and establish the truth of the factual circumstances asserted in the statements, those statements could not be elicited under the state of mind exception, as the father had argued.

[56] In my view, the OCL has established that the children’s statements within the above-stated categories meet the requirements for admissibility under the state of mind exception. As set out earlier, the statements were made to Ms. MacPherson, an experienced clinical social worker who had received training on how to obtain, record and convey a child’s views and preference using professional methodology. I find that Ms. MacPherson fulfilled her responsibility to accurately convey the children’s views to the court in this proceeding, and that she did so professionally and without any reason to falsify evidence or otherwise mislead the court. From the record, I see no basis to believe that these statements were made under circumstances of suspicion.

[57] Having regard to the children’s statements in these categories, I am satisfied that these statements address the contemporaneous physical, mental or emotional state of the respective child under the state of mind exception which should be admitted on this basis.

c. The Mother’s Objection to Ms. Iafrate’s Evidence

[58] The mother objected to Ms. Iafrate’s evidence on the basis that it disclosed confidential reunification therapy information. For the reasons that follow, I find that Ms. Iafrate’s evidence is not subject to case-by-case privilege and should not be inadmissible on this basis.

[59] Broadly speaking, the law recognizes two classes of privilege, being “class” privilege and “non-class” or “case-by-case” privilege. Class privilege is well-established and commonly refers to solicitor-and-client communications and settlement discussions between parties to litigation. Non-class or case-by-case privilege arises with special relationships that implicate a privileged status, such as the therapeutic relationship between a patient and a therapist. The person claiming a privilege has the onus to show that the communications should not be disclosed: Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (ONSC) at para 19; Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69 at para 42.

[60] The court may consider on a case-by-case basis whether privilege exists where “reason, experience and application of the principles that underlie the traditional privileges so dictate:” M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 at para 20. In Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 SCR 254 at 260, the Supreme Court approved the following four-part criteria set out in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285 to establish a case-by-case privilege:

a. The communication must originate in a confidence;

b. The confidence must be essential to the relationship in which the communication arises;

c. The relationship must be one which should be “sedulously fostered’ in the public good;

d. If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[61] Where all four (4) of the Wigmore criteria are satisfied, a privilege may exist to prevent the disclosure of the subject records or information. In applying the Wigmore test, the court is not to apply a blanket approach to privilege, but instead may determine whether therapy information is privileged in appropriate cases by carefully considering the issue of privilege on a case-by-cases basis: Ryan at para 37. Ultimately, if the first three Wigmore requirements are met, the analysis will depend on the balance of the competing interests of disclosure and privacy under the fourth head. Where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the disclosure that justice requires while preserving the confidential nature of the information to the greatest degree possible: Ibid. The court may craft flexible orders to safeguard privacy concerns and ensure that relevant information is available to avoid the injustice of cloaking the truth: Ryan at paras 33 and 37.

[62] Ms. Iafrate’s evidence from her reunification therapy with the family is relevant to the parenting-related issues in dispute. For the reasons that follow, I am satisfied that it would be in T.H.S.’ best interests for Ms. Iafrate’s evidence to be admitted so that court has the best available information to get at the truth in deciding the parenting issues in this case.

[63] I accept that some aspects of the reunification therapy that Ms. Iafrate conducted with the family was intended to be confidential. In this regard, Ms. Iafrate confirmed that she was unable

to testify about some private information of a sensitive nature which the children shared in therapy that originated in confidence. During her evidence, Ms. Iafrate maintained this confidence and respectfully declined to reveal any such private information the children had shared in therapy as she lacked their permission to disclose it. Having regard to Ms. Iafrate’s evidence on this point, I find that portions of the children’s therapy sessions were private and confidential and dealt with intimate personal topics which were discussed with Ms. Iafrate for therapeutic reasons. To support the private nature of those particular therapeutic sessions, and to promote the children’s ability and willingness to fully participate in therapy, including any ongoing or future therapy they may have, I find that the privacy of these therapeutic communications have transcendent public importance that should be sedulously fostered in the public interest: Ryan at para 28; Child and Family Services for York Region v. L.H., 2013 ONSC 5622 at paras 28-29. To this end, I find that the information discussed in the children’s confidential therapy sessions with Ms. Iafrate raises a compelling case under the Wigmore test for preserving this privacy: Ryan at paras 20, 24-28 and 37.

[64] Although some therapy information was confidential, Ms. Iafrate explained that she was quite comfortable testifying about other information that the children had shared in therapy on the understanding that this information could be conveyed to their parents. Ms. Iafrate’s approach to reunification therapy involved pursuing different strategies to help the children communicate. She described her discussions with T.H.S. in which they developed plans for him to share information with the father, such as having T.H.S. prepare letters to express some of his ideas. As Ms. Iafrate explained, sharing this information was important for T.H.S. and the father to develop a relationship and progress the reunification therapy. Ms. Iafrate also explained that her retainer included preparing a therapy summary on request to help the parties understand her services and what had occurred during therapy.

[65] In the circumstances, and given the unique dynamics of the therapy that Ms. Iafrate conducted in this case, I find that the information contained in her therapy summary dated October 21, 2020, and in her testimony at trial, did not originate in confidence to implicate therapeutic case- by-case privilege: Ryan at para 20. Given how Ms. Iafrate conducted the reunification therapy, I find that the communications from the children which she shared in her evidence did not breach any privacy or confidence that was essential to preserve or foster the therapeutic relationship: Ibid. Moreover, in light of the particular circumstances of this case, I find that any interests that would

arguably be served by protecting these communications from disclosure would be strongly outweighed by the interest in getting at the truth and correctly disposing of this litigation, in the best interests of the children: Ryan at para 20; Slavutych at 260.

The Test for Variation

[66] The Final Order dated December 6, 2016 was made under the Divorce Act. Accordingly,

s. 17 of the Divorce Act applies to this case. The relevant provisions of s.17 are set out as follows:

Variation order

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(c) a contact order or any provision of one, on application by a person to whom the order relates.

Factors for parenting order or contact order

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[67] Pursuant to ss. 17(5) of the Divorce Act, the court must find a change in the circumstances of the child before making a variation to a parenting order. The threshold requirement for a material change in circumstances is well-established in jurisprudence. The moving party must demonstrate a material change in circumstances that affects or is likely to affect the children. The change mut be to the condition, needs, means or circumstances of the children. If this test is not met, the inquiry goes no further: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 at paras 10-13; Persaud v. Garcia-Persaud, 2009 ONCA 782 at paras 3-4.

[68] In this case, paras 3(a) and (b) of the Final Order provided for the children to have regular parenting time with the father every other Thursday from after school until Sunday drop-off at 6:00 pm. In addition, the father had the option on Wednesdays during the weeks without weekend parenting time to share parenting time with the children from after school until 8:00 pm on 48 hours notice to the mother. Holiday, March break and summer parenting time were also specified in the Final Order. Importantly, para 3(c) to the Final Order provided that either party could initiate a review of the access schedule, as follows:

Either party may initiate a review of the access schedule after January 15, 2017. If

either party seeks a review, they shall attend mediation with an agreed upon mediator

to attempt to resolve any access related issues, taking into account the children’s wishes a nd preferences. Cost of mediation shall be shared equally by the parties. If mediation

is unsuccessful either party may proceed to court. Counsel for the parties will agree on a mediator if the parties are unable to pick one. [Emphasis added]

[69] Although this proceeding was brought as a motion to change, the parenting time order under the Final Order specifically authorized either party to bring a review of the parenting time schedule after January 15, 2017, but only after first attempting to resolve the issue at mediation. The parties attended mediation but could not resolve the parenting issue in dispute. The father subsequently pursued this motion to change.

[70] The review term under the parenting time provision in the Final Order creates a rare and narrow exception to the usual requirement that a material change in circumstances be shown to vary a parenting order: Fournier v. Fournier, 2020 ONSC 606 at paras 84-89. Accordingly, the father is not required to establish a material change of circumstances to vary the parenting time schedule on this motion: Reitsma v. Reitsma-Leadsom, 2005 CanLII 47762 (ONSC) at para 2. That being said, the review term under the Final Order is narrowly framed to only permit a review of the “access schedule” or parenting time schedule. The “joint custody” or joint decision-making provision at para 1 of the Final Order does not contain a review term. It follows that the review term formally applies to only a review of the parenting time schedule, and not to the other decision- making issues that the father has raised on this motion.

[71] On the facts of this case, I am satisfied that the father has demonstrated a material change in circumstances. It is clear that T.H.S. is not having any parenting time with the father as provided for in the Final Order. The denial of parenting time pursuant to a court order constitutes a material

change: DaSilva-Resendes v. Resendes, 2018 ONSC 4077 at para 31. In addition, I am satisfied that a material change has been demonstrated by the serious problems that the children have encountered in their parenting relationships with the father, as further described below.

Best Interests of the Children

[72] The parenting issues on this motion are informed by the best interests of the child. In determining a child’s best interests, s. 16 of the Divorce Act provides a number of factors which must be considered from the perspective of the child and their needs, not the needs or wishes of the parents. The factors under s. 16 to consider in determining the best interests of a child are set out as follows:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

Analysis K.R.S.

[73] Having regard to the totality of the evidence and the submissions made by the parties, I am satisfied that K.R.S., who is 18 years old, should continue to reside with the mother, who should exercise sole decision-making for the teen. Given K.R.S.’ maturity and awareness, I accept that the teen should have parenting time with the father at her sole discretion, and that the father should be respectful of K.R.S.’ preferences at all times.

[74] K.R.S. enjoys residing at the mother’s home with T.H.S. and her mother’s fiancé and his child from another relationship. She describes their home as a calm and peaceful place in which she feels supported and nurtured.

[75] K.R.S. and the father have strained relationship. She regards the father as a high-tempered parent with a tendency to lash out and resort to verbal abuse with frequency. K.R.S. believes the father has shown her less care or affection than her brother, which she attributes to a traditionalist view of women based on her perception of how the father treated herself and his former girlfriend. When K.R.S. told Ms. MacPherson about her relationship with the father, the teen had moments when she fought back tears at her memories of how the father had treated her. Prior to an OCL observational visit with the father, K.R.S. displayed anxious behaviour and an emotional response that seemed to show a strong aversion to being around the father.

[76] At this time, K.R.S. prefers to not see the father. She does not respond to his text messages, and reported feeling better and more at peace after having time away from him which allowed her to think more positively, improve her mental health, and work on her own development including some insecurities caused by their prior interactions. K.R.S. left open the possibility of spending future limited parenting time with the father, under supervision, once he demonstrates reformed behaviour that is kinder, more open-armed, and consistent with the conduct of a “father figure.”

K.R.S. refused the suggestion of counselling for herself and the father as she remains convinced that it would not work because the father would simply by acting, as he knows how to persuade people to adopt his side. K.R.S. believes that the father presents in a completely different manner to others in comparison to how he behaves when they are alone. She seriously doubts the sincerity of his gestures, and is not convinced that he is sufficiently motivated to change.

[77] The mother is supportive of K.R.S’s parenting views and preferences and submits that an order to have them considered and respected would serve the child’s best interests. As stated earlier, the father is now accepting of this and has withdrawn his motion to change, albeit with tremendous regret, with the hope that his relationship with K.R.S. may improve over time. In my view, there is a possibility that his parenting relationship with the child may be restored with much serious and honest self-reflection.

[78] Based on the foregoing, I find that the parenting relief for K.R.S. that the mother sought in her response to the motion to change would best serve K.R.S.’ interests and should be granted.

T.H.S.

[79] T.H.S. is now 15 years old. He is a bright and considerate teenager with good insight into the family dynamics and a thoughtful awareness of his personal situation within the parenting dispute in this litigation. T.H.S. is respectful and measured, albeit reserved, and has shown a level of wisdom and maturity that has satisfied me that his views and preference on parenting should be given serious consideration.

[80] T.H.S. is an active teen who enjoys competitive hockey. He resides in Brampton with the mother, K.R.S., the step-father (i.e., the mother’s fiancé) and the step-brother, and enjoys living with them. T.H.S. described his homelife as warm and nurturing, and referred to his mother, step- father, K.R.S. and step-brother in positive and supportive terms. T.H.S. has consistently expressed his strong preference to continue residing with the mother.

[81] For the reasons that follow, I am satisfied that T.H.S. should have his residence and sole decision-making with the mother, who should exercise sole discretion for his parenting time after taking the teen’s views and preferences into account. In my view, this arrangement would be in T.H.S.’ best interests, having regard to his maturity and awareness of the family dynamics and his situation within them. I also find that this may well be the only way for T.H.S. and the father to restore their parenting relationship. In my view, it will be absolutely critical for the father to take steps to rebuild T.H.S.’ confidence and trust in him before their relationship can meaningfully improve. To do this, I believe that the father must come to respect T.H.S.’ boundaries as a first and vital step to mutually restoring a sense of trust for their relationship to progress. Once the father demonstrates his respect for T.H.S.’ boundaries, I believe that T.H.S. may well find himself

more open to resuming their connection which may lead to a more meaningful parenting relationship over time. An important part of this process will necessarily require patience and self- reflection, as well as forgiveness. With sincere and honest efforts by the father and son, and the healing power of time, both may find themselves restoring their relationship with a stronger bond.

[82] The father relied on certain past events when his parenting time was disrupted as evidence of the mother’s effort to withhold the children. As set out below, I am not persuaded that these events establish that the mother improperly withheld or alienated the children.

[83] The children did not attend a scheduled parenting visit with the father from May 25-27, 2017 after the mother received a call from Peel Children’s Aid Society (“CAS”) about a complaint by a third party regarding an incident that occurred while the children were in the father’s care. After the mother met with child protection workers, who disclosed the nature of the incident, her concerns were addressed and the children’s parenting visits resumed. CAS later closed its file after concluding that the complaint was not verified. In the circumstances, I find that the mother took reasonable and good faith steps to obtain information about the complaint before resuming the children’s parenting time. In my view, the mother acted reasonably in the children’s best interests to ensure their safety and well being.

[84] Shortly afterwards, the children did not attend a scheduled parenting visit from June 8 to 11, 2017 after Peel Children’s Aid contacted her about an incident that had occurred while the children were in the father’s care. After child protection workers disclosed particulars of this incident, the mother concerns about the children’s safety while in the father’s care were addressed and the children’s parenting time with the father resumed. I find that the mother acted reasonably by making inquiries on behalf of the children before resuming their parenting time.

[85] On February 15 to 18, 2018, the children did not attend their scheduled parenting time after the father was charged on thirteen (13) counts of assault other criminal charges. On February 15, 2018, the father sent the mother a text message to say that he had an emergency and was unable to pick up the children. It later turned out that police had arrested him. Thereafter, CAS contacted the mother and disclosed that the assault charges pertained to the father’s relationship with his former girlfriend. The mother’s concerns for the children’s safety abated and their parenting time with the father resumed. CAS decided to take no further action and closed its file. Given the

exigent circumstances, I am satisfied that the mother acted reasonably and did not have any intention to improperly withhold or alienate the children.

[86] On several different occasions throughout 2017 and 2018, the children periodically missed their scheduled weekend parenting time due to scheduling conflicts or other commitments that seem typical of the kinds of activities that children have as they mature and become more involved with school and co-curricular or social activities. Given the nature of these circumstances, I am not persuaded these instances, when viewed collectively, support a finding of parental alienation.

[87] Beginning in 2018, K.R.S. began to refuse to attend her scheduled parenting visits with the father. The mother claims that she made reasonable efforts to persuade K.R.S., along with T.H.S., to attend parenting visits with the father, which the children corroborated to some extent in their meetings with Ms. MacPherson. However, despite the mother’s efforts, she was not always successful in having the children visit the father, particularly after both children began to form negative views of their visits, as discussed further below. The father points to remarks by the mother’s fiancé to suggest that the mother overly empowered the children into deciding for themselves whether to visit the father without fulfilling her obligation to comply with the Final Order by sufficiently encouraging or persuading the children to attend the visits.

[88] From the evidence, I accept that the children gave different reasons for not visiting the father at various times, and I recognize that the mother’s efforts to encourage the children to attend were inconsistent on different occasions, depending on why the children did not want to go and other prevailing circumstances. I accept that the father persistently challenged the mother when she would advise him of the children’s preferences to not attend a visit, and that these discussions were invariably abrasive and draining. I also accept that the mother sent the father a number of messages about the children not attending parenting visits that were abrupt or curt, both in tone and content, which further aggravated the dialogue. While regrettable, I recognize that the exchanges likely reflected the bitter and protracted nature of the adult conflict which had taken an emotional toll on both parties, as well as the children.

[89] I am troubled by the mother’s apparent decision to take the children to Great Wolf Lodge on their parenting weekend with the father. Although the mother had taken the children to Great Wolf Lodge or Niagara Falls Water Park for a mini-summer vacation almost every year since they

were small, I do not accept that this customary trip warranted a unilateral change to the children’s parenting schedule without the father’s consent. I share the father’s concern with the appearance that the mother had rewarded the children with the trip for not visiting him that weekend. That said, there is evidence that the father was uncooperative with the mother in accommodating travel with the children. As an example, the mother claims that the father did not provide a timely travel consent and added restrictions to the consent which left T.H.S. unable to travel with her to a hockey tournament in Pittsburgh. In response, the father claims that he tried to facilitate the trip but that the mother cancelled it to blame him for the missed event and undermine his relationship with the children. Although the father gave an executed travel consent, I accept that it purported to set a number of conditions, including certain obligatory disclosure and cost-indemnification terms, that extended beyond a simple travel consent and understandably gave the mother cause for concern given the binding obligations which the father sought to impose if she accepted his terms.

[90] On balance, I find that the mother has shown that she discharged her responsibility to comply with the parenting visit terms of the Final Order by making fair and reasonable efforts to have the children to attend the visits. I accept that her efforts to persuade the children to attend the visits necessarily changed as the children matured and developed insight into the family dynamics and their own circumstances, which affected their views and preferences on parenting time. Both children confirmed that the mother encouraged them to visit the father, which is consistent with how the mother’s fiancé characterized the mother’s efforts to Ms. MacPherson. The children also stated that the mother did not discuss the adult conflict or the family litigation with them, which is commendable. Both children said that the mother encouraged them to attend reunification therapy sessions with Ms. Iafrate, and Ms. MacPherson confirmed that the mother encouraged the children, particularly K.R.S., to attend their observational visit at the father’s home with her and Mr. Patel. In addition, the mother encouraged T.H.S. to attend his scheduled visits with the father in 2020 in an effort to regularize their parenting time as reunification therapy was unfolding. In all of the circumstances, I am not persuaded that the mother engaged in parental alienation.

[91] Under the parenting terms of the consent Final Order, the father had the option to spend mid-week parenting time with the children on alternate Wednesdays. According to the mother, the father previously was unable to exercise this Wednesday parenting time and never elected to do so until mid-2018 when he began to request this time but without 48 hours of prior notice as

required by the Final Order to exercise these mid-week visits. Although the father claims that he made countless Wednesday visit requests since December 2017, I find that the mother’s account is largely supported by the record. I also accept that the children increasingly made their own plans that periodically conflicted with the parenting schedule. However, on the whole of the evidence, I am satisfied that the mother made reasonable and persistent efforts to persuade the children to attend their visits with the father, even though her efforts were not always successful.

[92] The father raised a concern that the mother had failed to appropriately consult with him about the children’s high school enrolments. The evidence establishes that the children attended local high schools in the catchment areas for the mother’s home or the maternal grandmother’s home (i.e., which is still the parties parenting exchange location) after graduating from their local elementary feeder schools. This allowed the children to stay with their cohorts at school and remain in the locale. The Final Order directed the parties to meaningfully consult on the children’s education, which raised a mutual obligation that jointly gave both parties the responsibility to consult with each other. As both parties clearly knew when the children would be graduating from elementary school, it follows that either could have raised the enrolment issue had it truly required consultation. Although it would have been preferable for the parties to have discussed the matter, I am not persuaded that the mother acted with any ulterior motive to alienate the children from the father by enrolling them in high schools within the local catchment areas.

[93] The father notes that the mother moved to a new home without notice. While her failure to give him notice of the move likely created friction, she was not strictly obliged to provide notice at that time.[^7] In any event, the mother continued to reside in the same municipality and her new home is actually closer to the father’s residence, by about 7 km. Accordingly, in these particular circumstances, I am not persuaded that her move gave rise to any alienation concerns.

[94] The Final Order provides that the parties may each obtain their own notices or information from the children’s schools and health providers. Due to communication issues which I attribute to challenges arising from periodic turbulence in the parties’ relationship, I find that information gaps and misunderstandings likely arose between them and school or health workers regarding the sharing of information about the children and the designation of who the workers should contact. I accept that the mother tried to resolve the matter of third party information, in keeping with the terms of the Final Order, by previously asking her counsel to address this issue with the father

which was done back on May 8, 2018. Although third party information did not always flow smoothly, I find no basis on the record to believe that the mother somehow removed the father from any sources of information about the children. On balance, I am satisfied that none of the communication issues prove parental alienation and I decline to make any such finding.

[95] In his initial consultation with Mr. Patel, T.H.S. expressed a preference to continue residing with the mother with parenting time at her sole discretion after considering the child’s views and preferences. T.H.S.’ position later shifted to some extent when he stated that he only wanted to have parenting visits at his own sole discretion, which reflected a desire to exercise more personal autonomy as he matured. Nevertheless, the general thrust of T.H.S.’ position was always to have his personal views and preferences on parenting time considered and respected, which the teen consistently expressed throughout this proceeding.

[96] On March 13, 2019, Mr. Patel conveyed T.H.S.’ position to the father at a disclosure meeting. Following the meeting, the father advised of his intention to return the contempt motion for a determination. Thereafter, on June 7, 2019, the OCL assigned Ms. MacPherson to assist the children by preparing evidence of their parenting views and preferences for this litigation.

[97] Ms. MacPherson met with K.R.S. and T.H.S. separately and together on several occasions. She observed both children to be polite, respectful, and articulate about their feelings and views regarding their current living and parenting arrangements. In discussions, both children recounted details of past events that supported their perception of how their relationships with the father had deteriorated, which led to their reduced willingness to spend parenting time with him. Both grew emotional or anxious when discussing the potential for parenting time with the father to resume, particularly if visits were to occur in non-public places, as both children expressed real concerns that the father might be more prone to have angry outbursts with them if others were not around to moderate his behaviour.

[98] During his initial meetings with Ms. MacPherson on June 20, 2019 and August 2, 2019,

T.H.S. reported feeling a lot safer in the care of the mother than the father. According to T.H.S., the father usually screamed and yelled during parenting visits at his home, which T.H.S. attributed to little things that he or K.R.S. may have done to upset him. When asked to elaborate, T.H.S. described an incident when the father started throwing items like chips and cereal boxes to the

floor before demanding that K.R.S. and T.H.S. clean up the mess. In a separate discussion with Ms. MacPherson, K.R.S. recounted the same incident when the father learned that the children had eaten junk food and immediately threw all of the snacks from his cupboard before demanding that the children clean up the mess on the floor as if the disarray was their fault. K.R.S. said that the father is high-tempered and that the smallest things will trigger him to explode.

[99] The father does not deny that he became angry on this occasion and threw snacks from the cupboard, but states that the items fell or were thrown to the ground. In an effort to minimize the suggestion that he can be physically threatening, the father said that he did not throw items at the children. Nevertheless, I find that this incident, and the evidence of the father’s temper and yelling, illustrates the nature of the children’s concerns with the father’s volatility and anger which was directed towards them.

[100] Although T.H.S. denied that the father had ever physically disciplined or corrected him, the teen initially shared a fear of the father’s tendency to throw things when he becomes upset. Although T.H.S. later confirmed that he had no worries about the father actually hitting him, I am satisfied that T.H.S.’ concern with the father’s temper resulted from a series of recurring negative experiences when the father grew angry while caring for the children.

[101] T.H.S. disclosed that the father would be gone during the day when the child was in his care, and that sometimes the father would leave him and K.R.S. unattended in the evening for up to 3 or 4 hours. On those occasions, the father would leave his cell number for the children to call if something happened, but would not ensure that the children had eaten before he left the house. The father sometimes cooked at home, but was often not home which left the children to fend for themselves by eating snack foods, such as cereal or yogurt. Both children disliked being left at his home in this fashion, and felt that they did not have proper care or attention on these occasions.

[102] The father denies that he frequently left the children unattended at his home. According to the father, there was an occasion when he left T.H.S. at home for a short period to check on the paternal grandfather who was ill, although he ended up being gone longer than initially expected. Referring to this as an isolated incident, the father blames the mother for overreacting and states that both parents could have handled the matter better.

[103] I am satisfied that the father tended to leave the children unattended at his home during parenting visits, which was not uncommon. Having regard to their evidence, I find that the children frequently found themselves alone at the father’s home for several hours at a time when they were left to their own devices. Although the father gave them a number to call to reach him while he was away, I accept that the children disliked being left alone without adult care or attention when he was away during their visits. As the children matured and developed better awareness of their situation, I further accept that the children grew increasingly dissatisfied and indignant with having to spend parenting time by themselves at the father’s home.

[104] Starting from when he was 11 or 12 years old, T.H.S. began telling the father that he did not want to visit him anymore. The father then began attending T.H.S.’ school to try and pick him up, which made the child feel insecure. Despite T.H.S. telling the father that he wished to not visit, the father would still try to pick him up, sometimes without notice, to enforce the parenting visits.

T.H.S. said that the worst was when the father came to school to pick him up with all his friends around to witness the exchanges, particularly when the father recorded them on video which T.H.S. found embarrassing. T.H.S. also said that the father did not respect his boundaries by entering the change room at his hockey games and practices after T.H.S. expressly asked him not to do so.

[105] T.R.S. found it hard to understand why the father would want him to visit given that the father would regularly yell when they were together. When K.R.S. stopped visiting the father,

T.H.S. began visiting the father’s home by himself. Being alone with the father made T.H.S. feel vulnerable to incurring the father’s anger as he lacked the support of K.R.S. who previously had deflected some of it. Having grown accustomed to the father’s behaviour for some time, T.H.S. believed that it would not change. Although the father had promised to change in the past, he never followed through. This left T.H.S. with no expectation that the situation would improve.

[106] The father claimed to recognize that the children found his behaviour problematic, and indicated a willingness to rectify this in reunification therapy. However, he maintained that the children cited only a few vague instances where they found his behaviour problematic without describing any specific incidents that caused the rift in their relationship. He also claims to have made honest and loving attempts to reach out and connect with the children, whom he believes were under misguided beliefs about him and his genuine intention to form good relationships with both of them.

[107] When he initially met with Ms. MacPherson, T.H.S. said that there was nothing that the father could do or say to make the child want to visit him. T.H.S. said that he would not want to see the father without K.R.S. being present. When pressed, T.H.S. indicated that any parenting time compelled by the court with the father should take place in a public place, such as a restaurant, and not at the father’s home given T.H.S.’ concern that the father would yell at him in anger.

[108] On August 9, 2019, Ms. MacPherson and Mr. Patel conducted an observational visit with

T.H.S. and K.R.S. at the father’s home. Before the visit, Ms. MacPherson and Mr. Patel had a pre- meeting with the children and the mother at a nearby coffee shop to explain how the visit would be conducted. During the pre-meeting, K.R.S. seemed to experience some anxiety at the prospect of seeing the father again, but was comforted by the mother who gave assurances that everything would be fine before telling the children that she would await their return at the coffee shop.

[109] The observational visit was strained but proceeded without incident. The father shared some gifts and snacks with the children, engaged in conversation, and gave a tour of the house. Shortly after the visit, the children told Ms. MacPherson that their communications with the father were normally minimal during their parenting visits, and that the father often just left them in front of the television to entertain themselves. The children denied seeing any photos of themselves on the father’s fireplace mantel before that visit. The father felt that the visit offered a positive opportunity to engage with the children, and regarded the visit as having been successful.

[110] On August 26, 2019, the children told Ms. MacPherson that they were glad that the observational visit with the father was over. Although the father appeared calm during the visit,

K.R.S. and T.H.S. said that the father was really never as calm when they were alone with him. Although the children confirmed their belief that the father is unlikely to change, both expressed a willingness to spend more time with him if he begins to behave as he does when they are in public. K.R.S. did not want another visit with the father. However, T.H.S. was open to having another visit with the father if K.R.S. joined him to keep him safe, and T.H.S.’ position remained that his parenting time with the father should be at the mother’s sole discretion after accounting for the child’s views. Both K.R.S. and T.H.S. said that any parenting time ordered by the court should be limited to two (2) to three (3) hours and could take place anywhere, including the father’s home, provided that both children were permitted to accompany each other. K.R.S. was willing to participate in video calls with the father for up to an hour, but T.H.S. was not willing to do so.

Neither child wanted the father to attend their schools, and T.H.S. did not want the father to enter the change room at his hockey games or practices. In addition, neither child wanted to attend reunification therapy.

[111] On January 20, 2020, the parties entered into an interim without prejudice parenting schedule. Under the schedule, T.H.S. was to visit the father on January 22, 25, 27, 2020 and on February 5, 9, 10, 12 and 15, 2020.

[112] Prior to the January and February 2020 visits, T.H.S. only saw the father when the child wanted to. When asked about his visit with the father on January 22, 2020, T.H.S. initially could not remember the visit which had taken place in a coffee shop. The father claims that the visit was successful, that T.H.S. was engaged, and that inroads were made to restore their relationship.

[113] T.H.S. recalled his January 25, 2020 visit with the father, when they went skating before the father watched T.H.S. play hockey. Overall, T.H.S. enjoyed skating and described the visit in generally positive terms. However, T.H.S. said that his conversation with the father was limited and somewhat easy. At the beginning, middle and end of the visit, T.H.S. claims that the father asked why he had not come to visit him, which left T.H.S. feeling guilty. When T.H.S. raised a topic that interested him, the father cut him off and instead moved to another topic of discussion. The father denies that he asked T.H.S. about the missed visits, and claims that he refrained from discussing that subject given the inappropriateness of discussing the subject of this litigation with either of the children. On balance, I find that the father likely asked T.H.S. about the missed visits as this was a particularly thorny issue for T.H.S. who raised the point with Ms. MacPherson to share with the court. T.H.S. also raised this point in therapy with Ms. Iafrate, who shared it with the father who later refrained from asking T.H.S. about the missed visits to avoid guilting the child.

[114] On January 27, 2020, T.H.S. and the father went to play mini golf. T.H.S. said the visit was positive, but less so than the earlier skating visit. The father enjoyed playing mini golf with T.H.S., and said that this visit was successful.

[115] On February 5, 2020, T.H.S. and the father had another visit at a coffee shop. T.H.S. had only a vague recollection of this visit but said that he had wanted to leave near the end because it reminded him of the earlier January 22, 2020 coffee shop visit when the same topics came up in conversation. Although T.H.S. did not particularly mind visiting with the father, he disliked being

questioned by the father about why he skipped earlier visits which made T.H.S. want to leave to avoid having to give an answer. T.H.S. appreciated that the missed visits made the father unhappy, and caused T.H.S. to feel guilty. Although T.H.S. was uncomfortable with the visits and preferred to not attend them, I recognize that T.H.S. made a real effort to attend them, tried to keep a positive outlook, was sensitive to the father’s feelings, adjusted his behaviour to appear agreeable, and avoided making statements that he knew might hurt the father’s feelings. These circumstances led the child to face an emotionally difficult situation.

[116] T.H.S. and the father had scheduled a go-carting visit on February 9, 2020 and a dinner visit on February 10, 2020. However, on February 6, 2020, T.H.S. injured his knee during hockey practice. The mother took T.H.S. to hospital where x-rays confirmed that his knee was not broken, although it was severely bruised and swollen which left T.H.S. unable to walk on it. After the emergency room physician advised T.H.S. to rest, keep the knee elevated with an ice pack, and not walk or put pressure on it for a week, the mother’s lawyer emailed the father to give notice that

T.H.S. would not be attending his visits on February 9 or 10, 2020. Disappointed at missing his parenting time with T.H.S, the father blamed the mother and her lawyer for not providing any medical documentation to explain why T.H.S.’ knee injury should impact their parenting time, or why the father’s request for alternative plans could not be accommodated.

[117] As a result of the injury, T.H.S. missed school on February 10, 2020, did not participate in hockey for about a week, and returned to hockey for a practice on February 20, 2020 after his doctor confirmed that he was fit to play. On February 12, 2020, T.H.S. joined the father for a scheduled visit at a coffee shop. However, the father decided to take T.H.S. with him to the mall to get washer fluid and food for himself. The father claims that T.H.S. was willing to run some errands at the mall and reported feeling no pain when asked. When T.H.S. returned home, the mother iced his knee which apparently was sore from walking around the mall. I find that T.H.S. may have minimized his knee issue and attended the mall to please the father and accommodate his wish to run errands so their parenting visit would be a pleasant one. I also accept that T.H.S. had been sufficiently mobile to attend school on that day and the previous one. Nevertheless, the father’s decision to visit the mall to run errands with T.H.S. knowing the teen was recovering from a bruised knee raises some questions about the father’s parenting insight and priorities in relation to T.H.S.’ best interests.

[118] On February 14, 2020, T.H.S. and the father went bowling. T.H.S. had fun and enjoyed the visit. Although the visit was scheduled to allow K.R.S. to attend, she declined to join the visit. During the visit, T.H.S. was untroubled when the father asked him questions about K.R.S.. The father described the bowling visit with T.H.S. in positive terms and said that their parenting time on that occasion was successful.

[119] Starting in February 2020, Ms. Iafrate began conducting reunification therapy with the family pursuant to the agreement made by the parties on January 20, 2020. During his individual intake session with Ms. Iafrate on February 22, 2020, T.H.S. explained that he had recently started to have visits with the father again. Although T.H.S. reported that there hadn’t been any problems during the visits, he commented that the father was on his best behaviour. T.H.S. said that he was stressed by having to come to the intake session and voiced his preference to not attend therapy. Despite his reluctance, however, T.H.S. agreed to try a few sessions and went on to attend several joint therapy sessions with the father. T.H.S. was hopeful that the sessions would enable him to become more open and honest with the father, but he had reservations that therapy could achieve this given the complicated and ingrained nature of his relationship with the father.

[120] Ms. Iafrate conducted two joint sessions with T.H.S. and the father in her office on February 27, 2020 and March 12, 2020. Activities were planned for the sessions and specific therapeutic tasks were set for each visit. During both sessions, T.H.S. initially was uncomfortable and nervous, and explained that his stomach was upset. The father was attentive, inquisitive and responsive in his approach with T.H.S. and led the conversation using humour and an easy-going and friendly demeanour to engage with the child. T.H.S. and the father played chess together and engaged in various conversations. T.H.S. occasionally smiled and appeared less tense when they were involved in an activity.

[121] In March 2020, the reunification therapy was put on hold due to the provincial lockdowns resulting from the global pandemic.

[122] On May 22, 2020, T.H.S. met with Ms. MacPherson and Mr. Patel and advised them of his preference to have parenting time with the father at his own discretion in order to assume more responsibility for his own affairs. When asked why his father would have reason to believe that

T.H.S. would even call him if such autonomy were granted, especially given T.H.S.’ reluctance to

spend parenting time with him thus far, T.H.S. said that the father should simply just have trust in him. During the meeting, T.H.S. also expressed a preference to have visits with activities that also reflected his own interests, and for the father to refrain from discussing their past or raising topics that make the child feel uncomfortable, including questions about why the child does not visit more often or answer the father’s calls. In the event of a court-imposed parenting schedule, T.H.S. stated a preference for limited visits on alternating weekends for one (1) or two (2) hours, with any expanded frequency and/or duration of the visits being at his request. At one point, T.H.S. began to shake his knee, twiddle his fingers and deliberately avoid eye contact, which appeared to signal his fatigue and impatience with having to revisit the affairs of this family litigation.

[123] T.H.S. told Ms. MacPherson that neither K.R.S. nor the mother would speak to him about his parenting visits with the father, either before or after the visits.

[124] On May 28, 2020 Ms. Iafrate had an individual session with T.H.S. to discuss ways for

T.H.S. to express himself to the father. One technique they discussed was for T.H.S. to prepare notes in advance of what he wanted to ask the father to address.

[125] On June 4, 2020, Ms. Iafrate conducted a joint session with T.H.S. and the father. T.H.S. arrived with a written note that he had prepared in advance, at Ms. Iafrate’s suggestion, which he used to express his views regarding the boundaries he preferred the father to observe. Although Ms. Iafrate testified that T.H.S. appropriate expressed these boundaries, T.H.S. asked her for some help in explaining his opinions to the father. During the session, T.H.S. agreed to have the next joint session at the father’s house.

[126] T.H.S. later told Ms. MacPherson that he felt safer in his ability to express his feelings to the father due to Ms. Iafrate’s presence at the session. He also felt that the father may have been putting on a show for Ms. Iafrate’s benefit as he had acted unfazed by concerns T.H.S. had raised. Being well attuned to the father’s behaviour, T.H.S. had known that his concerns would likely bother the father. According to T.H.S., this dynamic led to a period of awkwardness before the father responded to his concern in the session. Nevertheless, despite having reservations with the sincerity behind the father’s gestures to improve their relationship, T.H.S. acknowledged some gains made in therapy. The father described the session in positive terms and felt that progress was made in repairing their relationship.

[127] On June 7, 2020, T.H.S. spent a parenting visit with the father on a nature walk in Caledon, followed by lunch. Their initial plans to visit a driving range had been changed as the range was full that day. T.H.S. had enjoyed the visit and told Ms. MacPherson that his conversation with the father that day was much better than previous ones because the father not asked him questions that made him uncomfortable. T.H.S. attributed this to Ms. Iafrate informing the father that these types of questions caused T.H.S. concern, as he had shared. T.H.S. also felt that the father was no longer guilting him about not attending past visits because he was now attending his parenting visits.

[128] T.H.S. acknowledged receiving text messages from the father, usually consisting of a few brief words of love or support. T.H.S. declined to respond to them. Based on his prior experiences with the father, T.H.S. regarded his text messages as simply for show to create a narrative for the purpose of establishing an evidentiary record for litigation purposes. The father gave evidence that his text messages to T.H.S. were genuine expressions of his love and support for the child. During the June 7, 2020 visit, the matter of the father’s text messages which T.H.S. had not responded to were not discussed, as both previously agreed to discuss these matters later in therapy.

[129] Two joint sessions were held at the father’s home on June 11 and 29, 2020. Although

T.H.S. was nervous before the June 11, 2020 visit, he explained that he felt much safer and relaxed upon seeing Ms. Iafrate when he arrived at the father’s home. When T.H.S. was offered a choice on June 11, 2020 for the next session to be at the father’s home or at Ms. Iafrate’s office, the child indicated a preference to attend the father’s home. The interactions between the father and T.H.S. were more relaxed at the father’s home as they ate pizza, worked on assembling a computer together, explored a bin of T.H.S.’s belongings that the father had found in the home, and recounted memories from the past. When Ms. Iafrate debriefed the session with T.H.S., he described the visit in positive terms and said he enjoyed working on the computer and going through the bin of belongings. T.H.S. later told Ms. MacPherson that attending the father’s home had improved his comfort level. T.H.S. informed Ms. Iafrate during the debrief that he would like to set up his bedroom at the father’s house and was open to spending additional time at the father’s house, but did not want all of his visits or sessions to take place there. T.H.S. said that he felt that he had bonded with the father, that they were getting closer, and that he had been continuing to visit with the father outside of therapy without any problems during the visits. However, as he later told Ms. MacPherson, T.H.S. wanted further time to build a level of trust with the father,

which T.H.S. believed could only be achieved over time after further visits in public places were successfully held. As T.H.S. later told Ms. MacPherson, the only reason he felt comfortable going to the father’s home was because of Ms. Iafrate’s presence, although T.H.C. declined the need for supervision if his parenting visits with the father were held in a public place. During the debrief with Ms. Iafrate, T.H.S. voiced his preference to spread out the joint sessions which led them to schedule a joint session for roughly one month later.

[130] The father believed that the sessions had positively improved his relationship with T.H.S., and regarded them as successful. The father claims that his conversations with T.H.S. were sincere and genuine, and were helping to restore their relationship. He remained interested in progressing with the sessions.

[131] Despite Ms. Iafrate’s skill and efforts, T.H.S. remained skeptical of the actual progress being made in therapy. T.H.S. continued to doubt the father’s sincerity as his similar past gestures had not led to meaningful improvement over years of conflict. Taking into account his experiences with the father, T.H.S. believed that the father’s disposition and conduct were likely entrenched. This left T.H.S. questioning how therapy could succeed. Given his deep-seeded belief that his father would simply revert back to his past behaviours after the reunification therapy concluded, T.H.S.’ preference was to discontinue the therapy sessions. In arriving at this, T.H.S. told Ms. MacPherson that he had already had an opportunity, with Ms. Iafrate’s help, to get everything off his chest about the strains in his relationship with the father. T.H.S. also told Ms. MacPherson that the sessions were causing him stress and discomfort. In the alternative, if he was not allowed to discontinue reunification therapy, T.H.S. told Ms. MacPherson that his preference was to have his parenting time with the father reviewed and adjusted as reunification counselling progressed by taking into consideration his views and preferences.

[132] During a meeting on June 12, 2020, T.H.S. told Ms. MacPherson that he still preferred to reside with the mother and to have parenting time at his sole discretion, with any court-ordered visits to occur on alternate weeks for one (1) to two (2) hours each time at a public place. Although

T.H.S. had earlier stated in August 2019 that he would be comfortable visiting the father at his home, T.H.S. expressed a preference to have parenting visits in the community until he felt more comfortable with the father. T.H.C. explained that he was more likely to become comfortable with the idea of progressing towards unsupervised visits at his father’s home after spending more time

working on their relationship. T.H.S. confirmed that the mother was encouraging him to visit the father, and said that she would inquire if he resisted a visit and then continue to persuade him to attend the visit. At the same time, T.H.S. expressed his growing frustration with the number of OCL interviews he had to participate in, which he found stressful, disruptive and annoying.

[133] Thereafter, T.H.S. continued to have parenting visits with the father on alternate Sundays for about 2 ½ hours each visit, with further visits to be mutually arranged. The visit reflected the interim parenting order made by Bielby J. on July 2, 2020.

[134] Starting in June or July 2020, the father began routinely directing T.H.S to create a scripted dialogue over text messages just before returning the child home from a parenting visit. According to T.H.S., the father would require him to text his father with messages indicating that the child had enjoyed the visit and wanted further parenting time, so that the father could respond with a proposed schedule that T.H.S. was directed to reply to positively with an enthusiastic tone. Although the father denies that any of his exchanges of text messages with T.H.S. were scripted, I am persuaded by T.H.S.’ evidence that these scripted messages were prepared at the father’s insistence to create a record of the teen’s purported request for expanded parenting time. Given his discomfort with making these scripted exchanges, T.H.S. stopped bringing his phone on his visits from July 2020 to stop having to create these text message exchanges. In my view, this supports T.H.S.’ account of how events unfolded. When T.H.S. stopped bringing his phone, the father began to falsely accuse the mother of not allowing T.H.S. to attend the visits with a phone, and led him to question T.H.S. on this to satisfy his suspicions although T.H.S. told him that the decision to not bring his phone was entirely his own. According to T.H.S., the father also continued to question him about why the mother would not allow additional visits, although T.H.S’ preference was to not expand the visits.

[135] In August 2020, Ms. Iafrate contacted the mother to schedule the next joint session for

T.H.S. and the father. However, the mother advised that T.H.S. did not want to have any more therapy sessions. The mother also raised concerns that the therapy sessions were causing the child to feel nervous and stressed. Given the troubling events that unfolded from the father’s efforts to fabricate text messages with T.H.S., I am satisfied the child’s recalcitrance was connected to these developments and to his clear reluctance to attend therapy from the outset which Ms. Iafrate had

recognized. When the mother suggested deferring the next joint session, Ms. Iafrate readily agreed to space out the therapy schedule and a tentative session was scheduled for September 28, 2020.

[136] On August 16, 2020, T.H.S. and the father spent their parenting time together by visiting the Hockey Hall of Fame. Unfortunately, the father was late in returning T.H.S. home from the parenting visit. The father claims that the lateness was unintended and happened because he lost track of time during the visit which they had enjoyed. T.H.S. states that the father was well aware of the return time but deliberately chose to keep him out longer. T.H.S. was quick to dismiss a suggestion by Ms. MacPherson that the tardiness was inadvertent, and stated that the father had intended for them to return late, as if to make a point to the mother that his interim parenting time with T.H.S. was inadequate. Unsurprisingly, the father’s tardiness sparked conflict with the mother, which put T.H.S. in the middle of the adult conflict and created a loyalty bind for the teen.

[137] On August 30, 2020, the father and T.H.S. visited a war plane museum near Hamilton that was hosting an air show that day. T.H.S. later told Ms. Iafrate that he enjoyed the idea of visiting the museum, but felt that the outing put him directly into the adult conflict as the distance to travel to the museum meant that the outing could not be done within the limited 2 ½ hour period for his parenting visit. I accept that the father clearly would have realized that the trip was unworkable within the limited period for his visit with T.H.S., but nevertheless chose to take it anyway. As a result, T.H.S. again returned home late from the visit which created friction with the mother by interfering with her plans. This led to renewed tension and conflict between the parties which intensified the parenting dispute.

[138] On September 3, 2020, T.H.S. attended an individual session with Ms. Iafrate, which ended up being his last reunification therapy session with her. During the session T.H.S. discussed his visits and relationship with the father. Although he had enjoyed the recent outings to the Hockey Hall of Fame and the war museum, T.H.S. explained that he was stuck in the middle between the parents which created another loyalty bind for the child. During the session, T.H.S. was agreeable, albeit reluctant, to attend another joint session with the father at Ms. Iafrate’s office in a few weeks. However, Ms. Iafrate could not schedule the next joint session. A session that had tentatively been scheduled for September 28, 2002 was rescheduled at the mother’s request to October 14, 2020, but was cancelled on October 8, 2020 by the mother because T.H.S. did not wish to attend any further individual or joint sessions.

[139] Events came to a head when questions arose over a purported exchange of text and email messages between the father and T.H.S..

[140] During the August 30, 2020 visit, the father claims that T.H.S. asked for additional time with him during their upcoming parenting visit the following weekend. On August 31, 2020, the father sent T.H.S. a text message saying that he had really enjoyed the visit. According to the father, T.H.C. responded to the text message with an email message to the father a few minutes later saying, “yes I had a good time too mom was piss-off when i got home”. The father then replied to T.H.S.’ email by text message saying “I look forward to seeing you soon. I will ask”, to which he claims that T.H.S. responded by email a minute later which read “looking forward to seeing you this sunday ask mom”. On September 1, 2020, the father sent T.H.C. a text message with (sic) “Good morning, be strong. You are an amazing kid and Im very proud of you. I will always keep trying to see you and I love you very much no matter what any one says.” He then claims that T.H.C. responded to him by email a few minutes later with “I asked mom to see you on Sunday but she said no and your putting on a show for the judge Love you too”. Later in that afternoon when the father sent T.H.S. a text saying “I appreciate your strength”, he claims that the child responded by email a few minutes later saying, “mom said to tell Samir I don’t want to see you makes me sad”. The reference to “Samir” was to Mr. Patel, the OCL lawyer representing

T.H.S. in this proceeding. On September 4, 2021, the father sent T.H.S. a text message saying “Hey buddy, I hope your week was well. I love you very much.” He then claims that the child responded a few minutes later by email that read, “love you too”.

[141] The purported exchange of alternating text and email messages between the father and

T.H.S. continued throughout September 2020 and well into October 2020. The common theme to these messages was T.H.S.’ purported interest in spending more parenting time with the father which the mother was thwarting. In one exchange, the father texted T.H.S. by saying “Good morning, I hope your school is going well. Would be ok to hang out to 4pm on Sunday Sept 27? Love you”. He then claims that T.H.S. responded a few minutes later by email, saying “Yes lets hang out to 4pm on sunday”. When the father texted T.H.S. the next evening with “Hey T, I hope you week was well. Your doing great. Love you”, the child purported responded by email a few minutes later saying “Week was good mom said that im not allowed to see this sunday very confused”. A few minutes later after the father texted “Please know that I will always want to see

you and be in your life. Love so much”, T.H.S. purportedly responded by email message with “I know its just mom is angry with you and it scares me mom make me say stuff to lawyer”.

[142] On September 26, 2020, T.H.S. texted the father to advise “I’m not coming this Sunday.” The father responded that afternoon with “Sorry to hear that. Could we chat about this? Love you”. Within minutes, the father claims that the child replied by email message with “sorry dad mom made me cancel access with you”. The father then texted T.H.S. with “Be strong, I am always here for you. I understand sometimes times are tough Love you”. He then claims that T.H.S. sent him an email message saying “its makes me sad when mom punishs us”.

[143] On October 8, 2020, the father texted T.H.S. to say “Good morning, I hope you are doing well and keeping safe”and “I understand that you were busy this week and could not make our session, what are you up to? Love you”. Minutes later, he claims that T.H.S. emailed a response that stated, “I’m not busy mom said we aren’t going to sessions it’s a waste of time and money”.

[144] On October 9, 2020, the father texted T.H.S. by saying “Hey, there may be so good value with session and I am always here to chat should you need me.” Later that day, he claims that

T.H.S. sent him an email message with “I don’t mind the sessions but as long as im under moms roof its mom rules”. A few minutes later, the father replied by text message with “Thank you your strength during this tough time.” T.H.S. then purportedly sent an email message saying “when are you going to get me out of here?” The father then texted T.H.S. with “I will do everything in my power to keep you safe” which purportedly led the child to email back “mom makes me sad all the time and i feel alone”. The father then texted T.H.S. with “I love you very much, you are my world. I will always be here for you. You make me so proud”, which was purportedly followed by an email from T.H.S. later that evening that said “I know you care but I get scared when mom says when I turn 16 she can finally get rid of you”.

[145] The alleged exchange of text and email messages is detailed in the father’s affidavit sworn December 1, 2020. Upon learning of the alleged messages when the affidavit was delivered, Ms. MacPherson and Mr. Patel promptly conducted an unannounced video interview with T.H.S. on December 5, 2020 to ask about the messages. By doing so, they gave T.H.S. no prior notice of the interview to avoid giving T.H.S. an opportunity to prepare or discuss the matter with anyone.

[146] During the interview, T.H.S. denied sending the father any email messages. According to T.H.S., he didn’t even know the father’s email address. As T.H.S. explained to Ms. MacPherson, he had created an email account years ago but never used it to communicate with the father.

[147] Sometime in the Fall of 2020, T.H.S. claims that the father told him that he had bought a new phone and needed help to create a password for the phone. According to T.H.S., the father wanted password ideas and asked about T.H.S.’ own password. T.H.S. claims that he responded by sharing the actual password to his phone to show the father an example of a password. Wanting to help, T.H.S. did not think much about disclosing his password to the father. T.H.S. confirmed that the password he had disclosed would allow the user access to his dormant email account that he never used. After reviewing the subject email messages to the father, T.H.S. verified that his email address appeared as the sending address for the messages. T.H.S. confirmed that the mother did not have access to his email account.

[148] T.H.S. denied sending email messages to the father. In addition, T.H.s. denied sending the father any text messages that became email messages, and was unaware of any way for text messages to be converted into email messages. When he later checked his email account for the subject messages to the father, he found nothing. T.H.S was in disbelief and told Ms. MacPherson that he found it disturbing that someone would send messages on his email account without his permission. T.H.S. said that the email messages had caused him to be less trusting of the father.

[149] The father claims that T.H.S. sent him the subject email messages. Although the father had been communicating with T.H.S. by text message, he claims that T.H.S. indicated around June 2020 that the mother read the child’s text messages and was upset that he had expressed a preference for more parenting time with the father. As T.H.S. apparently believed that he would get into trouble with the mother if he continued to text him, the father claims that T.H.S. began to respond to the father’s text messages by sending email messages that the mother could not access or read. According to the father, T.H.S. came up with this idea of communicating with the father through a combination of text and email messages to avoid aggravating the mother. The father denies that he got a new phone in the Fall of 2020, denies that he spoke to T.H.S. about passwords, denies that he asked T.H.S. for the password to his phone, and denies that he used T.H.S.’ password to access the child’s email account to send the subject email messages to himself.

[150] I do not believe the father’s account. In my view, the father’s explanation of how he received the email messages purportedly sent by T.H.S. is improbable. According to the father,

T.H.S. told him that the mother could not access or read any of his email messages. Given these particular circumstances, it would make no sense for the father and T.H.S. to have corresponded using a hybrid combination of text and email messages as the mother could still access and read the father’s text messages and understand at least half of their exchange, and possibly glean more. Had the father and T.H.S. truly wanted to correspond surreptitiously to avoid the mother learning about T.H.S.’ parenting time views, as the father alleges, it would have been much more logical and sensible for them to have communicated exclusively by email messages, which the mother could not access or read. When this was put to him in cross-examination, the father could not explain why they had not communicated by email. He simply claimed to not know why.

[151] During his unscheduled video call with Ms. MacPherson to discuss the email messages,

T.H.S. appeared surprised to learn that the messages were sent from his email account. T.H.S. then made the connection to the time when he disclosed his password to the father, which he then recounted in some detail. I am satisfied that T.H.S. would have shared his password with the father on request without concern as the child was trusting, wanted to help the father, and would not have expected the father to use the information without permission and take advantage of his trust and generous assistance. Having regard to the whole of the record, I see no reason to believe that

T.H.S. had any motive to give untrue or misleading evidence, and I accept that coming to the realization that his email account had been used without his permission was a very distressing and disappointing moment for the child.

[152] During the trial, the father sought and obtained a contested adjournment to bring a motion to have T.H.S.’ phone and email account undergo a digital forensics review to gather digital evidence for the purpose of determining whether the subject email messages originated from his email account. Subsequently, the father withdrew his motion after weighing the impact of a forensics review of T.H.S.’ phone and deciding that the associated intrusion into his digital privacy would be harmful and not serve the child’s best interests.

[153] I find that the father used T.H.S.’ password to access the teen’s email account without permission to forge a series of email messages in T.H.S.’ name to create a false narrative for the purpose of gaining a litigation advantage in this proceeding. I find that the forged email messages

reflected a last ditch effort by the father to mislead the court about T.H.S.’ parenting views and preferences by discrediting the mother, as well as the child’s lawyer and clinician. Although I realize that the father was likely desperate for more parenting time with T.H.S., his misconduct in seeking to adduce fabricated evidence to deceive the court was highly improper. The father used his relationship with T.H.S. to take advantage of the teen by using his password and email account without permission to impersonate the teen and misrepresent his parenting preferences to the court. By doing so, the father engaged in a particularly serious breach of trust that undoubtedly caused serious and lasting damage to his parenting relationship with the child.

[154] After December 1, 2020, T.H.S. completely stopped interacting with the father.

[155] As shown above, T.H.S.’ relationship with the father has been uneven. Although T.H.S. and the father had some positive visits and good conversations, particularly during reunification therapy sessions, I find that the progress they made in restoring their relationship was seriously compromised by the father’s misconduct. Partly due to his frustration with his limited parenting time and his impatience with the gradual progression of his relationship with T.H.S., the father tried to leverage the momentum from the reunification therapy by taking liberties to force unilateral extensions of his parenting visits. The father also used the child in a seriously misguided effort to script text messages before impersonating T.H.S. to fabricate email messages in order to engineer a narrative to seek more parenting time and gain a litigation advantage on the parenting issues in this proceeding.

[156] Unsurprisingly, the father’s behaviour annoyed the mother, aggravated the adult conflict, and caused T.H.S. stress and upset that magnified as conflict escalated. The situation caused

T.H.S. to grow wary of the father’s true motives and intentions, and led the child to distance himself while having second thoughts about spending parenting time which Ms. Iafrate had persuaded T.H.S. to attend in reunification therapy sessions. When T.H.S. later renewed his objection to attending reunification therapy, the mother withdrew her consent for him to attend therapy. Although the mother previously encouraged him to attend therapy believing that he might develop a positive relationship with the father, she later withdrew her consent after becoming concerned that the therapy had impacted T.H.S.’ health and emotional wellness.

[157] Events culminated when T.H.S. realized that the father had improperly accessed his email account to forge a series of fictitious email message to mislead the court about the child’s views in an effort to create a false narrative to gain a litigation advantage on the parenting issues in dispute. This was a blatant and deliberate effort by the father to deceive the court using false evidence. Moreover, the father’s conduct involved a profound breach of trust that undoubtedly caused serious harm to his relationship with T.H.S. that both had been trying to restore. Thereafter,

T.H.S. refused to have any further parenting time with the father.

[158] I am satisfied that T.H.S. was seriously impacted by the father’s misconduct, which unsettled and confused him, and that the teen needs emotional stability at this time to best ensure his well being. In my view, this will best be accomplished by having the child continue to reside with the mother and to provide T.H.S. with some boundaries that the father should respect until the child is emotionally ready to resume those parenting visits. In arriving at this, I recognize that

T.H.S. had grown frustrated and weary from constantly meeting with different professionals to discuss difficult personal issues of a sensitive nature that caused him discomfort, unease and some anxiety. In addition, I find that the ongoing COVID-19 pandemic and the heavier academic burden he now faces at school have made things more stressful for T.H.S. at this time. Given everything that T.H.S. has been through, I find that T.H.S. is emotionally spent and should not have to attend reunification or other therapy so that he may return to a more regularized routine.

[159] Most recently, T.H.S. told Ms. MacPherson that he still wants to have a relationship with the father but with parenting time at his own sole discretion. When asked whether he would ever actually take it upon himself to even see his father if such a parenting order were made, T.H.S. advised that he would be open to seeing his father in the future, particularly on special events and holidays, such as birthdays and Father’s Day, but that he needed his father to trust him. Although this reflects a modified version of his initial position, I accept that T.H.S. has consistently asserted a sincere wish for his parenting time views and preferences to be heard and respected.

[160] Given the history of this case, I find that T.H.S.’ wish to have his parenting time views taken into account reflects a mature, thoughtful and fair approach that is respectful of both parties while balancing his own needs. I accept that the parties likely foresaw the need to consider the children’s views as they matured in light of their agreement to consider the children’s preferences on the parenting schedule in their separation agreement, and later in the Final Order. Importantly,

T.H.S. has expressed a wish to restore his relationship with the father over time, which I regard as a sincere and honest commitment by the child to try his best to repair their parent-child bond. With appropriate support and guidance from the mother, who has stated and demonstrated a willingness to facilitate T.H.S’ relationship with the father for T.H.S.’ sake, I am satisfied that the child’s parenting time with the father should be at the mother’s sole discretion after taking into account the child’s wishes and preferences.

Outcome

[161] Based on all of the foregoing, the father’s motion to change is dismissed and the relief sought in the mother’s response to the motion to change is granted, along with corollary relief to address travelling abroad, applying for government documents, and the children’s privacy.

[162] Accordingly, I make the following orders:

a. The Applicant mother shall have primary residence and sole decision making responsibility of the children, K.R.S. and T.H.S.;

b. On consent, the Respondent father shall have no parenting time with K.R.S. unless otherwise permitted by K.R.S. in her sole discretion as to location, duration and frequency;

c. The Respondent father and T.H.S. shall have parenting time at the Applicant mother’s sole discretion as to location, duration and frequency;

d. K.R.S. and T.H.S. shall be free to communicate with the Respondent father as they may wish;

e. The Respondent father shall not access any of T.H.S.’ communication devices when T.H.S. is in his care;

f. The Applicant mother may travel with either K.R.S. or T.H.S. abroad without the Respondent father’s consent. Two (2) weeks before the travel begins, the Applicant mother shall provide the Respondent father with a detailed itinerary which shall include the names of any flight carriers, flight times, accommodations, including

addresses and telephone numbers of such accommodation, and all pandemic health protocols shall be observed;

g. The Applicant mother may obtain and renew a passport or other government documents for either child without the Respondent father’s consent;

h. The parties shall not discuss the family conflict or topics of an adult nature with

T.H.S. or, alternatively, while in his presence;

i. Except as modified by this order, all terms of the consent Final Order by Justice André dated December 6, 2016 shall remain in place;

j. The Respondent father shall obtain K.R.S.’ consent before obtaining information about her from professionals or institutions that are serving or supporting her;

k. The Motion to Change, as amended, is dismissed; and

l. On consent, the Respondent father’s contempt motions dated June 1, 2018 and December 4, 2019 are dismissed without costs.

[163] I encourage the parties to settle the issue of costs for the trial. If they are unable to do so, the mother and the OCL may deliver costs submissions of up to 5 pages (excluding costs outlines or any offer(s) to settle) within 20 days, and the father may deliver responding submissions on the same terms within a further 20 days. Reply submissions may not be delivered without leave.

Doi J.

Date: October 6, 2021

COURT FILE NO.: FS-14-81978-01

DATE: 2021 10 06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Y.M.S. , Applicant/Responding Party

AND:

R.O.S., Respondent/Moving Party

BEFORE: DOI J.

COUNSEL: Jordan D. McKie,

for the Moving Party

Mathew Fordjour,

for the Responding Party

Samir C. Patel,

for the children K.R.S. and T.H.S.

REASONS FOR JUDGMENT

Doi J.

DATE: October 6, 2021

[^1]: Ms. Iafrate’s therapy summary dated October 21, 2020 is found at Exhibit “A” to the father’s affidavit sworn December 2, 2020.

[^2]: By Endorsements dated September 21, 2020 and November 13, 2020, Ricchetti RSJ directed the delivery of affidavits for the hearing of this motion to change.

[^3]: On consent, the father file two (2) affidavits sworn December 10, 2020.

[^4]: See Affidavit of Ronald Omar Shah sworn December 1, 2020 at para 19.

[^5]: See Affidavit of Gillian MacPherson sworn October 8, 2020 at para 10.

[^6]: See Endorsement of Ricchetti RSJ dated November 13, 2020 at para 7, the Affidavit of Ronald Omar Shah sworn June 5, 2020 at para 18, and the Affidavit of Yvonne Michelle Sha sworn June 12, 2020 at para 48.

[^7]: On March 1, 2021, ss. 16.9 (Notice) of the Divorce Act, RSC 1985, c.3 (2nd Supp) came into force which requires a person with parenting time or decision-making responsibility in respect of a child of the marriage who intends to relocate to give notice of the proposed relocation to any other person with parenting time, decision- making responsibility, or contact under a contact order for the child.